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  FCC Proposes Rules for Cellular Wiretaps

By Roberto Suro
Washington Post Staff Writer
Friday, October 23, 1998; Page A16

Law enforcement agencies armed with court-authorized surveillance orders would be able to determine the location of a mobile telephone caller under rules proposed by the Federal Communications Commission yesterday.

The FCC proposals, which are still subject to a comment and review process, would also require wireless telephone carriers to ensure that police could tap into conference calls and collect information on the use of services such as call-waiting and call-forwarding on cellular phones.

Determining how wiretapping will be adapted to the age of wireless telecommunications has been the subject of a long-running dispute between the telephone industry, privacy groups and the Justice Department and the FBI, which have represented law enforcement agencies nationwide. In 1994 Congress enacted the Communications Assistance for Law Enforcement Act, which mandated that law enforcement get the capabilities it needed to monitor wireless communications without imposing unreasonable costs on industry or undue invasions of privacy. The law did not, however, spell out how this should be accomplished.

The FCC proposals approved yesterday mark the first time that a neutral referee has defined what exactly is required by the 1994 law and has thus defined the final stage of the debate.

"The FCC indicated its determination to ensure that, in the face of rapid technological change, law enforcement maintains its ability to use court-authorized wiretaps to combat the most serious crime, and at the same time the FCC recognized the important privacy interests at stake," said Jonathan Schwartz, an associate deputy attorney general.

The Center for Democracy and Technology, which has led the fight for privacy groups, issued a statement charging that the FCC had "proposed turning wireless phones into location tracking devices and requiring telephone companies to build additional surveillance features into their telephone networks, largely rejecting privacy arguments that the government already has too much surveillance powers."

The Justice Department and the FBI asked the FCC to intervene in April after failing to convince industry and privacy groups to accept a list of nine technical provisions considered essential to meet law enforcement's needs. The FCC's proposed rules accepted the law enforcement position on five points. These include access to detailed information on conference calls, such as knowing when a party has gone on hold or has dropped from the call.

In addition, the FCC acceded to law enforcement's request for access to digits dialed by a caller after the call has been connected, such as the numbers punched to get access to a bank account or voice mail.

The FCC rejected law enforcement demands on three points, including a requirement that carriers send a signal to verify that a wiretap is functioning properly, and declined to rule on a proposal that the carrier send a signal whenever a caller received a network message, such as an incoming ring that did not result in a completed call.

The proposal acknowledged the telecommunications industry's complaint that the FBI was demanding capacities "that go beyond the scope of what Congress had intended," said Thomas E. Wheeler, president of the Cellular Telecommunications Industry Association.

The FCC rejected a petition from the Center for Democracy and Technology asking it to prevent law enforcement from gaining location information from wiretaps on cellular phones. The proposed rule would oblige carriers to provide any information they have on the location of a phone at the beginning and termination of a call.

"This does not turn wireless phones into tracking devices," FCC Chairman William E. Kennard said in a statement. "Law enforcement can only secure this information if a court authorizes it. This capability will help law enforcement make our streets safe."

© Copyright The Washington Post Company

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